[Federal Register Volume 76, Number 93 (Friday, May 13, 2011)]
[Rules and Regulations]
[Pages 27898-27904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11710]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2010-1028; FRL-9305-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Prevention of Significant Deterioration; Greenhouse Gas 
Permitting Authority and Tailoring Rule Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Virginia Department of Environmental Quality (VADEQ) 
on October 27, 2010. This revision pertains to EPA's greenhouse gas 
(GHG) Prevention of Significant Deterioration (PSD) permitting 
provisions as promulgated on June 3, 2010 in the Tailoring Rule. The 
SIP revision modifies Virginia's PSD program to

[[Page 27899]]

establish appropriate emission thresholds for determining which new 
stationary sources and modifications become subject to Virginia's PSD 
permitting requirements for their GHG emissions. EPA is approving 
Virginia's SIP revision because the Agency has determined that this SIP 
revision is in accordance with the CAA and Federal regulations 
regarding PSD permitting for GHGs.

DATES: This final rule is effective on June 13, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2010-1028. All documents in the docket are listed in 
the http://www.regulations.gov Web site. Although listed in the 
electronic docket, some information is not publicly available, i.e., 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through http://www.regulations.gov or in hard copy for public inspection during normal 
business hours at the Air Protection Division, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103. Copies of the State submittal are available at the 
Virginia Department of Environmental Quality, 629 East Main Street, 
Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: David Talley, (215) 814-2117, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    Throughout this document, whenever ``we,'' ``us,'' or ``our'' is 
used, we mean EPA. On January 12, 2011 (76 FR 2070), EPA published a 
Notice of Proposed Rulemaking (NPR) for the Commonwealth of Virginia. 
The NPR proposed approval of a new Chapter 85 of 9 VAC 5. The formal 
SIP revision was submitted by the VADEQ on October 27, 2010.

II. Summary of Virginia's SIP Revision

    On October 27, 2010, VADEQ submitted a revision to EPA for approval 
into the Virginia SIP. This SIP revision would establish appropriate 
emission thresholds for determining which new or modified stationary 
sources become subject to Virginia's PSD permitting requirements for 
GHG emissions. Final approval of Virginia's October 27, 2010, SIP 
revision puts in place the GHG emission thresholds for PSD 
applicability set forth in EPA's ``Prevention of Significant 
Deterioration and Title V Greenhouse Gas Tailoring Rule--Final Rule'' 
(the Tailoring Rule, 75 FR 31514, June 3, 2010) ensuring that smaller 
GHG sources emitting less than these thresholds will not be subject to 
permitting requirements.

III. What is the background for today's proposed action?

    This section briefly summarizes EPA's recent GHG-related actions 
that provide the background for today's final action. More detailed 
discussions of the background are found in the preambles for those 
actions. In particular, the background is contained in what we call the 
GHG PSD SIP Narrowing Rule,\1\ and in the preambles to the actions 
cited in that rule.
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    \1\ Limitation of Approval of Prevention of Significant 
Deterioration Provisions Concerning Greenhouse Gas-Emitting Sources 
in State Implementation Plans; Final Rule. 75 FR 82536 (December 30, 
2010).
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A. GHG-Related Actions

    EPA has recently undertaken a series of actions pertaining to the 
regulation of GHGs that, although for the most part distinct from one 
another, establish the overall framework for today's final action to 
approve Virginia's October 27, 2010 SIP revision. Four of these actions 
include, as they are commonly called, the Endangerment Finding and 
Cause or Contribute Finding, which EPA issued in a single final 
action,\2\ the Johnson Memo Reconsideration,\3\ the Light-Duty Vehicle 
Rule,\4\ and the Tailoring Rule.\5\ Taken together and in conjunction 
with the CAA, these actions established regulatory requirements for 
GHGs emitted from new motor vehicles and new motor vehicle engines; 
determined that such regulations, when they took effect on January 2, 
2011, subjected GHGs emitted from stationary sources to PSD 
requirements; and limited the applicability of PSD requirements to GHG 
sources on a phased-in basis. EPA took this last action in the 
Tailoring Rule, which, more specifically, established appropriate GHG 
emission thresholds for determining the applicability of PSD 
requirements to GHG-emitting sources.
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    \2\ Endangerment and Cause or Contribute Findings for Greenhouse 
Gases Under Section 202(a) of the Clean Air Act. 74 FR 66496 
(December 15, 2009).
    \3\ Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs. 75 FR 17004 (April 2, 
2010).
    \4\ Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule. 75 FR 25324 
(May 7, 2010).
    \5\ Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 31514 (June 3, 
2010).
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    The PSD permitting program is implemented through the SIP, and so 
in December 2010, EPA promulgated several rules to implement the new 
GHG PSD SIP program. Recognizing that some states had approved SIP PSD 
programs that did not apply PSD to GHGs, EPA issued a SIP call and, for 
some of these states, a Federal Implementation Plan (FIP).\6\ 
Recognizing that other states had approved SIP PSD programs that do 
apply PSD to GHGs, but that do so for sources that emit as little as 
100 or 250 tons per year (tpy) of GHG, and that do not limit PSD 
applicability to GHGs to the higher thresholds in the Tailoring Rule, 
EPA issued the GHG PSD SIP Narrowing Rule. Under that rule, EPA 
withdrew its approval of the affected SIPs to the extent those SIPs 
covered GHG-emitting sources below the Tailoring Rule thresholds. EPA 
based its action primarily on the ``error correction'' provisions of 
CAA section 110(k)(6).
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    \6\ Specifically, by notice dated December 13, 2010, EPA 
finalized a SIP Call that would require those states with SIPs that 
have approved PSD programs but do not authorize PSD permitting for 
GHGs to submit a SIP revision providing such authority. ``Action To 
Ensure Authority To Issue Permits Under the Prevention of 
Significant Deterioration Program to Sources of Greenhouse Gas 
Emissions: Finding of Substantial Inadequacy and SIP Call,'' 75 FR 
77698 (Dec. 13, 2010). EPA has begun making findings of failure to 
submit that would apply in any state unable to submit the required 
SIP revision by its deadline, and finalizing FIPs for such states. 
See, e.g. ``Action To Ensure Authority To Issue Permits Under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Finding of Failure To Submit State 
Implementation Plan Revisions Required for Greenhouse Gases,'' 75 FR 
81874 (December 29, 2010); ``Action To Ensure Authority To Issue 
Permits Under the Prevention of Significant Deterioration Program to 
Sources of Greenhouse Gas Emissions: Federal Implementation Plan,'' 
75 FR 82246 (December 30, 2010). Because Virginia's SIP already 
authorizes Virginia to regulate GHGs, Virginia is not subject to the 
proposed SIP Call or FIP.
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B. Virginia's Actions

    On July 28, 2010, Virginia provided a letter to EPA, in accordance 
with an EPA request to all states in the Tailoring Rule, with 
confirmation that the Commonwealth of Virginia has the authority to 
regulate GHGs in its PSD program. The letter also confirmed that 
current Virginia rules require regulating GHGs at the 100/250 tpy 
threshold that generally applies to all air pollutants subject to PSD 
and that is provided under the CAA PSD provisions, section 169(1), 
rather than at the higher thresholds set in the Tailoring Rule. (See 
the docket for this rulemaking for a copy of Virginia's letter.)
    In the SIP Narrowing Rule, published on December 30, 2010, EPA 
withdrew

[[Page 27900]]

its approval of Virginia's SIP--among other SIPs--to the extent that 
the SIP applies PSD permitting requirements to GHG emissions from 
sources emitting at levels below those set in the Tailoring Rule.\7\ As 
a result, Virginia's current federally approved SIP provides the state 
with authority to apply PSD to GHG-emitting sources and requires new 
and modified sources to receive a PSD permit based on GHG emissions, 
but only if those sources emit at or above the Tailoring Rule 
thresholds.
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    \7\ ``Limitation of Approval of Prevention of Significant 
Deterioration Provisions Concerning Greenhouse-Gas Emitting Sources 
in State Implementation Plans; Final Rule.'' 75 FR 82536 (December 
30, 2010).
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    Virginia's October 27, 2010 SIP revision amends its SIP to put in 
place the GHG emission thresholds for PSD applicability set forth in 
EPA's Tailoring Rule. EPA's approval of Virginia's October 27, 2010 
incorporates these adopted by the Commonwealth into the Federally-
approved SIP. Doing so will clarify the applicable thresholds in the 
Virginia SIP.
    The basis for this SIP revision is that limiting PSD applicability 
to GHG sources which emit at or above the higher thresholds in the 
Tailoring Rule is consistent with the SIP provisions that provide 
required assurances of adequate resources, and thereby addresses the 
flaw in the SIP that led to the SIP Narrowing Rule. Specifically, CAA 
section 110(a)(2)(E) includes as a requirement for SIP approval that 
States provide ``necessary assurances that the State * * * will have 
adequate personnel [and] funding * * * to carry out such [SIP].'' In 
the Tailoring Rule, EPA established higher thresholds for PSD 
applicability to GHG-emitting sources on grounds that the states 
generally did not have adequate resources to apply PSD to GHG-emitting 
sources below the Tailoring Rule thresholds,\8\ and no State, including 
Virginia, asserted that it did have adequate resources to do so.\9\ In 
the SIP Narrowing Rule, EPA found that the affected states, including 
Virginia, had a flaw in their SIP at the time they submitted their PSD 
programs, which was that the applicability of the PSD programs was 
potentially broader than the resources available to them under their 
SIP.\10\ Accordingly, for each affected state, including Virginia, EPA 
concluded that EPA's action in approving the SIP was in error, under 
CAA section 110(k)(6), and EPA rescinded its approval to the extent the 
PSD program applies to GHG-emitting sources below the Tailoring Rule 
thresholds.\11\ EPA recommended that States adopt a SIP revision to 
incorporate the Tailoring Rule thresholds, thereby (i) assuring that 
under State law, only sources at or above the Tailoring Rule thresholds 
would be subject to PSD; and (ii) avoiding confusion under the 
Federally approved SIP by clarifying that the SIP applies to only 
sources at or above the Tailoring Rule thresholds.\12\
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    \8\ Tailoring Rule, 75 FR 31517/1.
    \9\ SIP Narrowing Rule, 75 FR 82540/2.
    \10\ Id. at 82542/3.
    \11\ Id. at 82544/1.
    \12\ Id. at 82540/2.
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IV. EPA's Response to Comments Received on the Proposed Action

    EPA received a single set of relevant comments on its January 12, 
2011 (76 FR 2070) proposed action to approve revisions to Virginia SIP. 
These comments, provided by the Air Permitting Forum (hereinafter 
referred to as ``the Commenter''), raised concerns with regard to EPA's 
January 12, 2011 proposed action. A full set of these comments is 
provided in the docket for today's final action. A summary of the 
comments and EPA's responses are provided below.
    Generally, the adverse comments fall into four categories. First, 
the Commenter asserts that PSD requirements cannot be triggered by 
GHGs. Second, the Commenter expresses concerns regarding ``EPA's 
statement that it may narrow its prior SIP approvals'' to ensure that 
sources with GHG emissions that are less than the Tailoring Rule's 
thresholds will not be obligated under Federal law to obtain PSD 
permits prior to a SIP revision incorporating those thresholds. The 
Commenter explains that this SIP approval narrowing action would be 
``illegal.'' \13\ Third, the Commenter states that EPA has failed to 
meet applicable statutory and executive order review requirements. 
Lastly, the Commenter states: ``If EPA proceeds with this action, it 
must condition approval on the continued validity of its determination 
that PSD can be triggered by GHGs.'' EPA's response to these four 
categories of comments is provided below.
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    \13\ Although the Commenter discussed only the proposal to 
narrow, the final PSD SIP Narrowing Rule had been issued prior to 
when the commenter submitted its comments. EPA assumes these 
comments are intended to apply to the final PSD SIP Narrowing Rule.
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    Comment 1: The Commenter asserts that PSD requirements cannot be 
triggered by GHGs. In its letter, the Commenter states: ``[n]o area in 
the Commonwealth of Virginia has been designated attainment or 
unclassifiable for greenhouse gases (GHGs), as there is no national 
ambient air quality standard (NAAQS) for GHGs. Therefore, GHGs cannot 
trigger PSD permitting requirements.'' The Commenter notes that it made 
this argument in detail in comments submitted to EPA on the Tailoring 
Rule and other related GHG rulemakings. The Commenter attached those 
previously submitted comments to its comments on the proposed 
rulemaking related to this action. Finally, the Commenter states that 
``EPA should immediately provide notice that it is now interpreting the 
Act not to require that GHGs trigger PSD and allow Virginia to rescind 
that portion of its rules that would allow GHGs to trigger PSD.''
    Response 1: EPA established the requirement that PSD applies to all 
pollutants newly subject to regulation, including non-NAAQS pollutants, 
in earlier national rulemakings concerning the PSD program, and EPA has 
not re-opened that issue in this rulemaking. Accordingly, these 
comments are not relevant to this rulemaking. In addition, EPA has 
explained in detail, in recent rulemakings concerning GHG PSD 
requirements, its reasons for disagreeing with these comments. For 
convenience, we briefly summarize these reasons here, although, again, 
we have not re-opened this issue in this rulemaking.
    In an August 7, 1980 rulemaking at 45 FR 52676, 45 FR 52710-52712, 
and 45 FR 52735, EPA stated that a ``major stationary source'' was one 
that emitted ``any air pollutant subject to regulation under the Act'' 
at or above the specified numerical thresholds; and defined a ``major 
modification,'' in general, as a physical or operational change that 
increased emissions of ``any pollutant subject to regulation under the 
Act'' by more than an amount that EPA variously termed as de minimis or 
significant. In addition, in EPA's NSR Reform rule at 67 FR 80186 and 
67 FR 80240 (December 31, 2002), EPA added to the PSD regulations the 
new definition of ``regulated NSR pollutant'' [currently codified at 40 
CFR 52.21(b)(50) and 40 CFR 51.166(a)(49)], noted that EPA added this 
term based on a request from a commenter to ``clarify which pollutants 
are covered under the PSD program'' and explained that in addition to 
criteria pollutants for which a NAAQS has been established, ``[t]he PSD 
program applies automatically to newly regulated NSR pollutants, which 
would include final promulgation of an NSPS [new source performance 
standard] applicable to a previously unregulated pollutant.'' Id. at 67 
FR 80240 and 67 FR 80264. Among other things, the definition of 
``regulated NSR pollutant'' includes ``[a]ny pollutant that otherwise 
is subject to

[[Page 27901]]

regulation under the Act.'' See 40 CFR 52.21(b)(50)(d)(iv); see also 40 
CFR 51.166(a)(49)(iv).
    In any event, EPA disagrees with the Commenter's underlying premise 
that PSD requirements were not triggered for GHGs when GHGs became 
subject to regulation as of January 2, 2011. As just noted, this has 
been well-established and discussed in connection with prior EPA 
actions, including, most recently, the Johnson Memo Reconsideration and 
the Tailoring Rule. In addition, EPA's January 12, 2011 proposed 
rulemaking notice provides the general basis for the Agency's rationale 
that GHGs, while not a NAAQS pollutant, can trigger PSD permitting 
requirements. The January 12, 2011 notice also refers the reader to the 
preamble to the Tailoring Rule for further information on this 
rationale. In that rulemaking, EPA addressed at length the comment that 
PSD can be triggered only by pollutants subject to the NAAQS and 
concluded that such an interpretation of the Act would contravene 
Congress's unambiguous intent. See 75 FR 31560-31562. Further 
discussion of EPA's rationale for concluding that PSD requirements are 
triggered by non-NAAQS pollutants such as GHGs appears in the Tailoring 
Rule Response to Comments document (``Prevention of Significant 
Deterioration and Title V GHG Tailoring Rule: EPA's Response to Public 
Comments''), pp. 34-41; and in EPA's response to motions for a stay 
filed in the litigation concerning those rules [``EPA's Response to 
Motions for Stay,'' Coalition for Responsible Regulation v. EPA, D.C. 
Cir. No. 09-1322 (and consolidated cases)], at pp. 47-59, and are 
incorporated by reference here. These documents have been placed in the 
docket for today's action.
    Comment 2: The Commenter expresses concerns regarding the legality 
of narrowing prior SIP approvals if states cannot interpret their 
regulations to include the Tailoring Rule thresholds within the phrase 
``subject to regulation.''
    Response 2: While EPA does not agree with the Commenter's assertion 
that the narrowing approach that EPA proposed in the Tailoring Rule and 
finalized in the PSD SIP Narrowing Rule is illegal, the validity of the 
narrowing approach is irrelevant to the action that EPA is today taking 
for Virginia's October 27, 2010 SIP revision. EPA did not propose to 
narrow its approval of Virginia's SIP as part of its January 12, 2011 
proposed action, and in today's final action, EPA is acting to approve 
a SIP revision submitted by Virginia and is not otherwise narrowing its 
approval of prior submitted and approved provisions in the Virginia 
SIP. Accordingly, the legality of the narrowing approach is not at 
issue in this rulemaking.
    Comment 3: The Commenter states that EPA has failed to meet 
applicable statutory and executive order review requirements. 
Specifically, the Commenter refers to the statutory requirements and 
executive orders for the Paperwork Reduction Act, the Regulatory 
Flexibility Act (RFA), the Unfunded Mandates Reform Act, and Executive 
Order 13132 (Federalism). Additionally, the Commenter mentions that EPA 
has never analyzed the costs and benefits associated with triggering 
PSD for stationary sources in Virginia, much less nationwide.
    Response 3: EPA disagrees with the Commenter's statement that EPA 
has failed to meet applicable statutory and executive order review 
requirements. As stated in EPA's proposed approval of Virginia's 
October 27, 2010 SIP revision, this action merely approves state law as 
meeting Federal requirements and does not impose additional 
requirements beyond those imposed by state law. Accordingly, EPA's 
approval, in and of itself, does not impose any new information 
collection burden, as defined in 5 CFR 1320.3(b) and (c), that would 
require additional review under the Paperwork Reduction Act. In 
addition, this SIP approval will not have a significant economic impact 
on a substantial number of small entities, beyond that which would be 
required by the state law requirements, so a regulatory flexibility 
analysis is not required under the RFA. Accordingly, this rule is 
appropriately certified under section 605(b) of the RFA. Moreover, as 
this action approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandates or significantly 
or uniquely affect small governments, such that it would be subject to 
the Unfunded Mandates Reform Act. Furthermore, this action does not 
have Federalism implications that would make Executive Order 13132 
applicable, because it merely approves a state rule implementing a 
Federal standard and does not alter the relationship or the 
distribution of power and responsibilities established in the CAA. 
Finally, regarding the Commenter's assertion that EPA has ``never 
analyzed the costs and benefits of triggering PSD for stationary 
sources in Virginia, much less nationwide'', this comment is not 
relevant to the current action because this action is not triggering 
GHG PSD requirements.
    Today's rule is a routine approval of a SIP revision, which 
approves state law, and does not impose any requirements beyond those 
imposed by state law. To the extent these comments are directed more 
generally to the application of the statutory and executive order 
reviews to the required regulation of GHGs under PSD programs, these 
comments are irrelevant to the approval of state law in today's action. 
However, EPA provided an extensive response to similar comments in 
promulgating the Tailoring Rule. EPA refers the Commenter to the 
sections in the Tailoring Rule entitled ``VII. Comments on Statutory 
and Executive Order Reviews,'' 75 FR 31601-31603, and ``VI. What are 
the economic impacts of the final rule?,'' 75 FR 31595-31601. EPA also 
notes that today's action does not in-and-of itself trigger the 
regulation of GHGs. To the contrary, GHGs are already being regulated 
nationally, and PSD permitting for GHG emissions by Virginia is already 
authorized under the existing SIP. Today's action simply puts in place 
the GHG emission thresholds for PSD applicability set forth in EPA's 
Tailoring Rule, thereby ensuring that smaller GHG sources emitting less 
than these thresholds will not be subject to permitting requirements.
    Comment 4: The Commenter states that ``[i]f EPA proceeds with this 
action, it must condition approval on the continued validity of its 
determination that PSD can be triggered by GHGs.'' Further, the 
Commenter remarks on the ongoing litigation in the U.S. Court of 
Appeals for the D.C. Circuit. Specifically, regarding EPA's 
determination that PSD can be triggered by GHGs or is applicable to 
GHGs, the Commenter mentions that ``EPA should explicitly state in any 
final rule that the continued enforceability of these provisions in the 
Virginia SIP is limited to the extent to which the Federal requirements 
remain enforceable.''
    Response 4: EPA believes that it is most appropriate to take 
actions that are consistent with the Federal regulations that are in 
place at the time the action is being taken. To the extent that any 
changes to Federal regulations related to today's action result from 
pending legal challenges or other actions, EPA will process appropriate 
SIP revisions in accordance with the procedures provided in the Act and 
EPA's regulations. EPA notes that in an order dated December 10, 2010, 
the United States Court of Appeals for the D.C. Circuit denied motions 
to stay EPA's regulatory actions related to GHGs. Coalition for 
Responsible Regulation, Inc. v. EPA, Nos. 09-1322, 10-1073, 10-1092 
(and consolidated cases), Slip Op.

[[Page 27902]]

at 3 (D.C. Cir. December 10, 2010) (order denying stay motions).

V. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed. Virginia's 
legislation also provides, subject to certain conditions, for a penalty 
waiver for violations of environmental laws when a regulated entity 
discovers such violations pursuant to a voluntary compliance evaluation 
and voluntarily discloses such violations to the Commonwealth and takes 
prompt and appropriate measures to remedy the violations. Virginia's 
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and 
information about the content of those documents that are the product 
of a voluntary environmental assessment. The Privilege Law does not 
extend to documents or information (1) that are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
that are prepared independently of the assessment process; (3) that 
demonstrate a clear, imminent and substantial danger to the public 
health or environment; or (4) that are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information ``required by Federal law to maintain program 
delegation, authorization or approval,'' since Virginia must ``enforce 
Federally authorized environmental programs in a manner that is no less 
stringent than their Federal counterparts. * * *'' The opinion 
concludes that ``[r]egarding Sec. 10.1-1198, therefore, documents or 
other information needed for civil or criminal enforcement under one of 
these programs could not be privileged because such documents and 
information are essential to pursuing enforcement in a manner required 
by Federal law to maintain program delegation, authorization or 
approval.''
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements imposed by Federal 
law,'' any person making a voluntary disclosure of information to a 
state agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The Attorney General's January 12, 
1998 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any Federally authorized programs, since 
``no immunity could be afforded from administrative, civil, or criminal 
penalties because granting such immunity would not be consistent with 
Federal law, which is one of the criteria for immunity.''
    Therefore, EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
PSD program consistent with the Federal requirements. In any event, 
because EPA has also determined that a state audit privilege and 
immunity law can affect only state enforcement and cannot have any 
impact on Federal enforcement authorities. EPA may at any time invoke 
its authority under the CAA, including, for example, sections 113, 167, 
205, 211 or 213, to enforce the requirements or prohibitions of the 
state plan, independently of any state enforcement effort. In addition, 
citizen enforcement under section 304 of the CAA is likewise unaffected 
by this, or any, state audit privilege or immunity law.

VI. Final Action

    EPA is approving 9 VAC5 Chapter 85 as a revision to the Virginia 
SIP. EPA has determined that this SIP submittal is approvable because 
it is in accordance with the CAA and EPA regulations regarding PSD 
permitting for GHGs.
    As discussed above, in the PSD SIP Narrowing Rule, EPA both 
narrowed its prior approval of a number of SIPs and asked that each 
affected state withdraw from EPA consideration the part of its SIP that 
is no longer approved, and stated that approval of a SIP revision 
incorporating the Tailoring Rule thresholds into a SIP would count as 
removing these no-longer-approved provisions. Today's SIP revision 
approval accomplishes exactly this. Because EPA is approving Virginia's 
changes to its air quality regulations to incorporate appropriate 
thresholds for GHG permitting applicability into Virginia's SIP, then 
paragraph (t) in Sec.  52.2423 of 40 CFR part 52, as included in EPA's 
PSD SIP Narrowing Rule--which codifies EPA's limiting its approval of 
Virginia's PSD SIP to not cover the applicability of PSD to GHG-
emitting sources below the Tailoring Rule thresholds--is no longer 
necessary. In today's action, EPA is also amending Section 52.2423 of 
40 CFR part 52 to remove this unnecessary regulatory language; the 
removal of this now-extraneous language is ministerial in nature.

VII. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human

[[Page 27903]]

health or environmental effects, using practicable and legally 
permissible methods, under Executive Order 12898 (59 FR 7629, February 
16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the Virginia SIP is not approved to apply in Indian country 
located in the Commonwealth, and EPA notes that it will not impose 
substantial direct costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by July 12, 2011. Filing a petition for 
reconsideration by the Administrator of this final rule to approve 
Virginia's October 27, 2010 SIP revision does not affect the finality 
of this action for the purposes of judicial review nor does it extend 
the time within which a petition for judicial review may be filed, and 
shall not postpone the effectiveness of such rule or action. This 
action pertaining to greenhouse gas permitting in Virginia may not be 
challenged later in proceedings to enforce its requirements. (See 
section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, and Reporting and recordkeeping 
requirements.

    Dated: April 25, 2011.
James W. Newsom,
Acting Regional Administrator, Region III.
    40 CFR Part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for 40 CFR part 52 continues to read as 
follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart VV--Virginia

0
2. In Sec.  52.2420, the table in paragraph (c) is amended by adding 
entries for Chapter 85, Sections 5-85-10, 5-85-40, 5-85-50; 5-85-60, 
and 5-85-70 after existing section 5-80-2240 to read as follows:


Sec.   52.2420 Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
----------------------------------------------------------------------------------------------------------------
                                                                                                  Explanation
         State citation               Title/subject            State        EPA approval date     [former SIP
                                                          effective  date                          citation]
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
             9 VAC 5, Chapter 85 Permits for Stationary Sources of Pollutants Subject to Regulation
----------------------------------------------------------------------------------------------------------------
                                              Part I Applicability
----------------------------------------------------------------------------------------------------------------
5-85-10........................  Applicability..........  1/2/11           5/13/11 [Insert     .................
                                                                            page number where
                                                                            the document
                                                                            begins].
----------------------------------------------------------------------------------------------------------------
                         Part III Prevention of Significant Deterioration Permit Actions
----------------------------------------------------------------------------------------------------------------
5-85-40........................  Prevention of            1/2/11           5/13/11 [Insert     .................
                                  Significant                               page number where
                                  Deterioration Area                        the document
                                  Permit Actions.                           begins].
5-85-50........................  Definitions............  1/2/11           5/13/11 [Insert     .................
                                                                            page number where
                                                                            the document
                                                                            begins].
----------------------------------------------------------------------------------------------------------------
                                     Part IV State Operating Permit Actions
----------------------------------------------------------------------------------------------------------------
5-85-60........................  State Operating Permit   1/2/11           5/13/11 [Insert     .................
                                  Actions.                                  page number where
                                                                            the document
                                                                            begins].
5-85-70........................  Definitions............  1/2/11           5/13/11 [Insert     .................
                                                                            page number where
                                                                            the document
                                                                            begins].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


[[Page 27904]]

* * * * *

0
3. In Sec.  52.2423, paragraph (t) is removed.

[FR Doc. 2011-11710 Filed 5-12-11; 8:45 am]
BILLING CODE 6560-50-P